Wednesday, July 28, 2010

Phelps-Roper Nebraska Settlement

Shirley Phelps-Roper, of Westboro Baptist Church notoriety (the group that protests near military funerals, among other things) has received a $17,000 settlement from an Omaha suburb in connection with a challenge to the town's scheme for granting permits for public expression. The Phelps-Ropers have been successful in challenging other limits on public contention, including flag desecration laws and laws regulating their funeral protests.

Most notably, they have a First Amendment challenge pending before the Supreme Court relating to the imposition of civil tort liability in connection with one of their funeral protests. I joined an amicus brief filed with the Court in which several academics urged the Court not to let the verdict stand. In brief, the impositon of liability for "extreme and outrageous" speech (the standard under the intentional infliction of emotional distress tort) poses serious dangers to speech in public places, including on college campuses and in traditional public forums like parks and streets. We urge the Court to at the very least impose First Amendment limitations on the imposition of such liability.